D [b ~

=-Docket No 13-0519 OF WeST VIRGINIA

- -~

WOMENS HEALTH CENTER OF WEST VIRGINIA JACK CANFIELD Commissioner WORKFORCE West Virginia and BOARD OF REVIEW WORKFORCE

West Virginia Respondents Below

Appellants

v

NICOLE PARSONS Petitioner Below

Appellee

THE HONORABLE JENNIFER BAILEY JUDGE CIRCUIT COURT OF KANAWHA COUNTY

CIVIL ACTION No 12-AA-125

RESPONSE BRIEF OF ApPELLEE NICOLE PARSONS

Counsel for Appellee Nicole Parsons

Kathy A Brown (WV Bar 8878) Counsel ofRecord

Kathy Brown Law PLLC PO Box 631

Charleston WV 25322 304-720-2351- Phone 304-720-2352- Fax

kathybrovmlaw~71gmailcom

TABLE OF CONTENTS

Table of Contents

Table ofAuthorities 11

Statement of the Case 1

I Procedural Background 1

II Facts of the Case 3

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination

Summary of Argument 5

Statement Regarding Oral Argument and Decision 6

Argument 6

Standard of Review 6

letter 6

II Nichole Parsons was terminated from her position for failing to report to one day of work when her employee handbook stated three consecutive absences would be treated as voluntarily resigning employment 9

Conclusion 11

Certificate of Service 12

TABLE OF AUTHORITIES

Adkins v Gatson Syl Pt 3 192 WVa 561453 SE2d 395 (1994) 6

Mercer County Board ofEducation v Gatson 186 WVa 252 412 SE2d 249 (1991) 6 7

May v Chair and Members Board ofReview 222 WVa 373 664 SE2d 714 (2008) 89

11

STATEMENT OF THE CASE

The only issues before this Court are whether the Court below correctly found that Nicole

Parsons

(1) never communicated an intention to resign from her position instead she was sent a tern1ination letter and

(2) was terminated from her position for failing to report to one day of work when her employee handbook stated three consecutive absences would be treated as voluntarily resigning employment

I Procedural Background

The Circuit Court of Kanawha County found Appellee Nicole R Parsons (Appellee or

Parsons) eligible for unemployment compensation benefits as she was terminated and did not

voluntarily quit

Parsons was terminated from her employment at the Womens Health Center of West

Virginia (WHC or Appellant) by WHC Director Sharon Lewis over the telephone on June 4

2012 Parsons applied for unemployment benefits on June 6 2012 WORKFORCE West

Virginia granted Parsons compensation in a decision dated June 13 2012 by Deputy Andy

Osborne The employer appealed the Deputys decision A hearing was held on July 27 2012

wherein the employer advanced two theories 1) that Parsons committed gross misconduct and 2)

that Parsons voluntarily quit After a hearing in front of Administrative Law Judge Truman J

Sayre Jr Parsons prevailed In a decision issued July 30 2012 ALJ Sayre wrote

The claimant was discharged The claimant was absent beginning May 14 2012 due to her daughters illness The employer and the claimant agreed that the claimant would begin work June 4 2012 subsequent to her maternity leave but the claimant was absent June 4 2012 due to her daughters illness The claimant was then discharged because she failed to report to work as scheduled at 12 noon on June 4 2012 The claimant provided a doctors excuse regarding the June 42012 absence The claimants absence due to her daughters illness would not involve deliberate disregard of the employers interest so the claimants June 4 2012 absence does not constitute misconduct Accordingly it is held the claimant was discharged but not for misconduct The claimant is not disqualified

Appendix 69 ofALlDecision at Appendix 67-69

1

The employer appealed that decision to the Board of Review This hearing was to take no

new testimony or evidence and was held on September 5 2012 The claimant who was pro se

did not appear The Board of Review overturned the ALJs decision and held that Parsons should

be denied unemployment benefits for a different reason than what was given by the ALJ The

Board ruled that Parsons voluntarily quit

When the claimant went on maternity leave she worked Monday through Wednesday At the end of the maternity leave the employer expected her to resume the same schedule The claimant was unable to do so The claimant effectively quit her job when she indicated she could only work Mondays and Fridays The claimant missed work on June 42012 because her daughter was ill This absence would have been excused under normal circumstances Nevertheless the claimant had no plans to work the following days of that week Tuesday and Wednesday Accordingly it is found that the claimant quit her job She has failed to show any fault on part of the employer causing her to quit

Appendix 85 and 86 ofBoard ofReview Decision at Appendix 84-88

The above decision of the Board of Review was appealed to the Kanawha County Circuit

Court On April 24 2013 the Circuit Court ruled

In the present case it is undisputed based on testimony adduced before Administrative Law Judge Sayre that the Petitioner never communicated an intention to resign from her position to her employer Furthermore the employer sent her the letter stating that she was terminated from her position subsequent to her failure to report back to work on Monday June 42012 when she called in to advise that her baby was ill and that she would be unable to work

It was established that under the employee handbook that the Petitioner signed and agreed to three consecutive absences would be treated as voluntarily resigning employment Hearing Transcript p 46-47 The Petitioner was absent one day of work prior to receiving the termination letter from the Respondent Had the Petitioner remained absent for the next two days and had the respondent not sent the letter she may very well be considered as having left her employment without good cause involving fault on the part of the employer However the Petitioner had not yet taken the final action to resign her job when she received the termination letter

Circuit Court Order Appendix 166-167

Following this Order Parsons was awarded partial back pay from WorkForce West

Virginia

2

II Facts of the Case

Parsons a licensed practical nurse worked for WHC a medical clinic part-time before

taking maternity leave on March 26 2012 She was fired over the telephone on June 4 2012

before she could come back to work following the maternity leave See AU Hrg Tr ofJuly 27

2012 at 53 Appendix 35 Parsons had a difficult pregnancy and a sick baby Id at 48-50

Appendix 33-34 At 86 Appendix 43 Prior to her coming back to work Parsons was asked by

her employer to provide days when she would be available to work Id at 35 Appendix 30

Parsons also testified that neither she nor her employer had addressed what her work schedule

would be when she came back from maternity leave See id at 42 Appendix 32 Parsons

testified that she talked to the front office manager Marci Meyers on May 142012 and told her

she would not be able to return to work for another two weeks and that Ms Myers told her that

would not be a problem AU transcript page 27-28 Appendix 28 After May 14 2012 Parsons

did not hear from WHC She received no telephone calls no text messages and no letters AU

transcript page 31 Appendix 29 On May 25 Parsons let WHC know she was coming back to

work Still having no written information about what her work schedule would be Parsons sent a

text message stating she could start back to work on Mondays and Fridays See Employer

Exhibit 6 attached to July 27 2012 transcript Appendix 56 On May 29 2012 Parsons

submitted to her employer a facsimile that stated she would be available to work on Mondays

and Fridays See Employer Exhibit 7 attached to July 27 2012 transcript Appendix 57

Despite Parsons requests to work on Mondays and Fridays those requests were denied That

same date Executive Director of WHC Sharon Lewis sent a letter to Parsons putting in writing

for the first time her schedule The schedule would be Monday (1200 pm to 5 pm) Tuesday

(830 am to 500 pm) and Wednesday (1200 to 500 pm) See Employer Exhibit 8 attached

3

to July 27 2012 transcript Appendix 58 This letter arrived May 30 2012 Parsons was to

report to work five days later and work a schedule she was just now given

The May 292012 letter sent by Ms Lewis further stated to Parsons that [i]fyou fail to

report for work on Monday June 4 2012 your employment will be terminated pursuant to

Policy No 502 set forth in the Womens Health Center Employee Handbook See id Appendix

58 WHCs policy manual states employees who are absent from work for three consecutive

days without giving proper notice to the Center will be considered to have voluntarily

resigned See Employer Exhibit 1 to July 27 2012 hearing Appendix 48 (emphasis added)

Parsons called the Womens Health Center on the morning of June 4 2012 to report that

she could not come to work because her baby was sick See ALJ transcript p 48 Appendix 33

The baby had an allergy and her little body was covered with blisters See ALJ transcript p 49shy

50 Appendix 34 The receptionist Susan Patton took a note dated June 4 2012 and timed at

839 am which stated that Nicole Parsons had called stating I cant come in because I have to

take Carlee to the doctor See Employers Exhibit 9 attached to July 27 2012 transcript

Appendix 59 Parsons spoke with Ms Lewis later that day to make sure Ms Lewis knew she

would not be coming to work See AL J transcript at p 53 Appendix 35 Ms Lewis testified

that she did indeed speak to Parsons and told her that she had sent the May 29 2012 letter and

that because she was not coming to work on June 4 2012 she should refer to that letter which

told her she would be terminated if she failed to report to work See ALJ transcript at 78 and 79

Appendix 41 Ms Lewis testified Well ifthats what the letter stated then thats what it means

ld at 79 Therefore Parsons was effectively terminated from employment on that day June 4

2012

4

Ms Lewis sent a letter dated June 6 2012 stating that Parsons was indeed terminated

See Employers Exhibit 10 attached to the July 27 2012 transcript Appendix 60 The

purpose of this letter is to advise you that your employment with the Womens Health Center of

West Virginia was terminated effective June 5 2012 as a result of your failure to report to

work for your scheduled shift starting at 1200 noon on June 4 2012 ld (emphasis added)

Appendix 60 The letter further states [y]our absences since May 28 2012 have been

unapproved and unexcused As a result your employment has been terminated ld (emphasis

added) Appendix 60 This letter says nothing about Parsons failure to make plans to work

Tuesdays and Wednesdays

SUMMARY OF ARGUMENT

The Circuit Court was correct in its ruling that the Board of Review was clearly wrong

Parsons never communicated an intention to resign from her position In fact she took steps to

keep her employer informed of her babys health and when she could return to work Parsons

had nothing in writing about what her schedule would be upon her return Parsons believed she

was given an extension to her maternity leave when she spoke with her supervisor Marci Meyers

on May 14 2012 WHC sent a letter on May 29 2012 for the first time outlining in writing

what her schedule would be upon Parsons return from maternity leave That schedule would be

June 4 2012 (1200 pm to 500 pm) Tuesday (830 am to 500 pm) and Wednesday (1200

pm to 500 pm) Yet when she called to give notice pursuant to the handbook that she could

not come to work on June 4 2012 she was fired and then told that her absences from May 28

2012 had been unapproved and unexcused Parsons was not scheduled to work the week of May

282012 She was pursuant to Lewis letter told to report to work on June 42012 The Circuit

Court is correct that if Parsons had failed to come to work the next two days without notice she

5

would have voluntarily left her job The way it was handled by WHC Parsons was terminated

and the letter she received on June 6 2012 said exactly that

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Appellee believes that oral argument is necessary and would help the Court understand

the issues

ARGUMENT

Standard of Review

Appeals of decisions of the Workforce West Virginia Board of Review are subject to the

following standard of review

The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong

Syl Pt 3 Adkins v Gatson 192 W Va 561453 SE2d 395 (1994) Further the Court is

guided by the consistent recognition that unemployment compensation statutes should be

liberally construed in favor of the claimant[] Mercer County Board of Education v Gatson

186 W Va 252 412 SE2d 249 (1991)

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination letter

Nicole Parsons wanted to come back to work after giving birth to her baby She had a

difficult pregnancy and a sick baby but she needed to continue working She called her

workplace sent text messages and even sent a facsimile letting WHC know she planned to come

back to work Parsons believed she had been granted a two week extension to her maternity

leave from May 142012 to May 282012 She called on May 252012 to tell WHC that she was

ready to come back to work the following week She did request to work Mondays and Friday

6

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

TABLE OF AUTHORITIES

Adkins v Gatson Syl Pt 3 192 WVa 561453 SE2d 395 (1994) 6

Mercer County Board ofEducation v Gatson 186 WVa 252 412 SE2d 249 (1991) 6 7

May v Chair and Members Board ofReview 222 WVa 373 664 SE2d 714 (2008) 89

11

STATEMENT OF THE CASE

The only issues before this Court are whether the Court below correctly found that Nicole

Parsons

(1) never communicated an intention to resign from her position instead she was sent a tern1ination letter and

(2) was terminated from her position for failing to report to one day of work when her employee handbook stated three consecutive absences would be treated as voluntarily resigning employment

I Procedural Background

The Circuit Court of Kanawha County found Appellee Nicole R Parsons (Appellee or

Parsons) eligible for unemployment compensation benefits as she was terminated and did not

voluntarily quit

Parsons was terminated from her employment at the Womens Health Center of West

Virginia (WHC or Appellant) by WHC Director Sharon Lewis over the telephone on June 4

2012 Parsons applied for unemployment benefits on June 6 2012 WORKFORCE West

Virginia granted Parsons compensation in a decision dated June 13 2012 by Deputy Andy

Osborne The employer appealed the Deputys decision A hearing was held on July 27 2012

wherein the employer advanced two theories 1) that Parsons committed gross misconduct and 2)

that Parsons voluntarily quit After a hearing in front of Administrative Law Judge Truman J

Sayre Jr Parsons prevailed In a decision issued July 30 2012 ALJ Sayre wrote

The claimant was discharged The claimant was absent beginning May 14 2012 due to her daughters illness The employer and the claimant agreed that the claimant would begin work June 4 2012 subsequent to her maternity leave but the claimant was absent June 4 2012 due to her daughters illness The claimant was then discharged because she failed to report to work as scheduled at 12 noon on June 4 2012 The claimant provided a doctors excuse regarding the June 42012 absence The claimants absence due to her daughters illness would not involve deliberate disregard of the employers interest so the claimants June 4 2012 absence does not constitute misconduct Accordingly it is held the claimant was discharged but not for misconduct The claimant is not disqualified

Appendix 69 ofALlDecision at Appendix 67-69

1

The employer appealed that decision to the Board of Review This hearing was to take no

new testimony or evidence and was held on September 5 2012 The claimant who was pro se

did not appear The Board of Review overturned the ALJs decision and held that Parsons should

be denied unemployment benefits for a different reason than what was given by the ALJ The

Board ruled that Parsons voluntarily quit

When the claimant went on maternity leave she worked Monday through Wednesday At the end of the maternity leave the employer expected her to resume the same schedule The claimant was unable to do so The claimant effectively quit her job when she indicated she could only work Mondays and Fridays The claimant missed work on June 42012 because her daughter was ill This absence would have been excused under normal circumstances Nevertheless the claimant had no plans to work the following days of that week Tuesday and Wednesday Accordingly it is found that the claimant quit her job She has failed to show any fault on part of the employer causing her to quit

Appendix 85 and 86 ofBoard ofReview Decision at Appendix 84-88

The above decision of the Board of Review was appealed to the Kanawha County Circuit

Court On April 24 2013 the Circuit Court ruled

In the present case it is undisputed based on testimony adduced before Administrative Law Judge Sayre that the Petitioner never communicated an intention to resign from her position to her employer Furthermore the employer sent her the letter stating that she was terminated from her position subsequent to her failure to report back to work on Monday June 42012 when she called in to advise that her baby was ill and that she would be unable to work

It was established that under the employee handbook that the Petitioner signed and agreed to three consecutive absences would be treated as voluntarily resigning employment Hearing Transcript p 46-47 The Petitioner was absent one day of work prior to receiving the termination letter from the Respondent Had the Petitioner remained absent for the next two days and had the respondent not sent the letter she may very well be considered as having left her employment without good cause involving fault on the part of the employer However the Petitioner had not yet taken the final action to resign her job when she received the termination letter

Circuit Court Order Appendix 166-167

Following this Order Parsons was awarded partial back pay from WorkForce West

Virginia

2

II Facts of the Case

Parsons a licensed practical nurse worked for WHC a medical clinic part-time before

taking maternity leave on March 26 2012 She was fired over the telephone on June 4 2012

before she could come back to work following the maternity leave See AU Hrg Tr ofJuly 27

2012 at 53 Appendix 35 Parsons had a difficult pregnancy and a sick baby Id at 48-50

Appendix 33-34 At 86 Appendix 43 Prior to her coming back to work Parsons was asked by

her employer to provide days when she would be available to work Id at 35 Appendix 30

Parsons also testified that neither she nor her employer had addressed what her work schedule

would be when she came back from maternity leave See id at 42 Appendix 32 Parsons

testified that she talked to the front office manager Marci Meyers on May 142012 and told her

she would not be able to return to work for another two weeks and that Ms Myers told her that

would not be a problem AU transcript page 27-28 Appendix 28 After May 14 2012 Parsons

did not hear from WHC She received no telephone calls no text messages and no letters AU

transcript page 31 Appendix 29 On May 25 Parsons let WHC know she was coming back to

work Still having no written information about what her work schedule would be Parsons sent a

text message stating she could start back to work on Mondays and Fridays See Employer

Exhibit 6 attached to July 27 2012 transcript Appendix 56 On May 29 2012 Parsons

submitted to her employer a facsimile that stated she would be available to work on Mondays

and Fridays See Employer Exhibit 7 attached to July 27 2012 transcript Appendix 57

Despite Parsons requests to work on Mondays and Fridays those requests were denied That

same date Executive Director of WHC Sharon Lewis sent a letter to Parsons putting in writing

for the first time her schedule The schedule would be Monday (1200 pm to 5 pm) Tuesday

(830 am to 500 pm) and Wednesday (1200 to 500 pm) See Employer Exhibit 8 attached

3

to July 27 2012 transcript Appendix 58 This letter arrived May 30 2012 Parsons was to

report to work five days later and work a schedule she was just now given

The May 292012 letter sent by Ms Lewis further stated to Parsons that [i]fyou fail to

report for work on Monday June 4 2012 your employment will be terminated pursuant to

Policy No 502 set forth in the Womens Health Center Employee Handbook See id Appendix

58 WHCs policy manual states employees who are absent from work for three consecutive

days without giving proper notice to the Center will be considered to have voluntarily

resigned See Employer Exhibit 1 to July 27 2012 hearing Appendix 48 (emphasis added)

Parsons called the Womens Health Center on the morning of June 4 2012 to report that

she could not come to work because her baby was sick See ALJ transcript p 48 Appendix 33

The baby had an allergy and her little body was covered with blisters See ALJ transcript p 49shy

50 Appendix 34 The receptionist Susan Patton took a note dated June 4 2012 and timed at

839 am which stated that Nicole Parsons had called stating I cant come in because I have to

take Carlee to the doctor See Employers Exhibit 9 attached to July 27 2012 transcript

Appendix 59 Parsons spoke with Ms Lewis later that day to make sure Ms Lewis knew she

would not be coming to work See AL J transcript at p 53 Appendix 35 Ms Lewis testified

that she did indeed speak to Parsons and told her that she had sent the May 29 2012 letter and

that because she was not coming to work on June 4 2012 she should refer to that letter which

told her she would be terminated if she failed to report to work See ALJ transcript at 78 and 79

Appendix 41 Ms Lewis testified Well ifthats what the letter stated then thats what it means

ld at 79 Therefore Parsons was effectively terminated from employment on that day June 4

2012

4

Ms Lewis sent a letter dated June 6 2012 stating that Parsons was indeed terminated

See Employers Exhibit 10 attached to the July 27 2012 transcript Appendix 60 The

purpose of this letter is to advise you that your employment with the Womens Health Center of

West Virginia was terminated effective June 5 2012 as a result of your failure to report to

work for your scheduled shift starting at 1200 noon on June 4 2012 ld (emphasis added)

Appendix 60 The letter further states [y]our absences since May 28 2012 have been

unapproved and unexcused As a result your employment has been terminated ld (emphasis

added) Appendix 60 This letter says nothing about Parsons failure to make plans to work

Tuesdays and Wednesdays

SUMMARY OF ARGUMENT

The Circuit Court was correct in its ruling that the Board of Review was clearly wrong

Parsons never communicated an intention to resign from her position In fact she took steps to

keep her employer informed of her babys health and when she could return to work Parsons

had nothing in writing about what her schedule would be upon her return Parsons believed she

was given an extension to her maternity leave when she spoke with her supervisor Marci Meyers

on May 14 2012 WHC sent a letter on May 29 2012 for the first time outlining in writing

what her schedule would be upon Parsons return from maternity leave That schedule would be

June 4 2012 (1200 pm to 500 pm) Tuesday (830 am to 500 pm) and Wednesday (1200

pm to 500 pm) Yet when she called to give notice pursuant to the handbook that she could

not come to work on June 4 2012 she was fired and then told that her absences from May 28

2012 had been unapproved and unexcused Parsons was not scheduled to work the week of May

282012 She was pursuant to Lewis letter told to report to work on June 42012 The Circuit

Court is correct that if Parsons had failed to come to work the next two days without notice she

5

would have voluntarily left her job The way it was handled by WHC Parsons was terminated

and the letter she received on June 6 2012 said exactly that

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Appellee believes that oral argument is necessary and would help the Court understand

the issues

ARGUMENT

Standard of Review

Appeals of decisions of the Workforce West Virginia Board of Review are subject to the

following standard of review

The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong

Syl Pt 3 Adkins v Gatson 192 W Va 561453 SE2d 395 (1994) Further the Court is

guided by the consistent recognition that unemployment compensation statutes should be

liberally construed in favor of the claimant[] Mercer County Board of Education v Gatson

186 W Va 252 412 SE2d 249 (1991)

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination letter

Nicole Parsons wanted to come back to work after giving birth to her baby She had a

difficult pregnancy and a sick baby but she needed to continue working She called her

workplace sent text messages and even sent a facsimile letting WHC know she planned to come

back to work Parsons believed she had been granted a two week extension to her maternity

leave from May 142012 to May 282012 She called on May 252012 to tell WHC that she was

ready to come back to work the following week She did request to work Mondays and Friday

6

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

STATEMENT OF THE CASE

The only issues before this Court are whether the Court below correctly found that Nicole

Parsons

(1) never communicated an intention to resign from her position instead she was sent a tern1ination letter and

(2) was terminated from her position for failing to report to one day of work when her employee handbook stated three consecutive absences would be treated as voluntarily resigning employment

I Procedural Background

The Circuit Court of Kanawha County found Appellee Nicole R Parsons (Appellee or

Parsons) eligible for unemployment compensation benefits as she was terminated and did not

voluntarily quit

Parsons was terminated from her employment at the Womens Health Center of West

Virginia (WHC or Appellant) by WHC Director Sharon Lewis over the telephone on June 4

2012 Parsons applied for unemployment benefits on June 6 2012 WORKFORCE West

Virginia granted Parsons compensation in a decision dated June 13 2012 by Deputy Andy

Osborne The employer appealed the Deputys decision A hearing was held on July 27 2012

wherein the employer advanced two theories 1) that Parsons committed gross misconduct and 2)

that Parsons voluntarily quit After a hearing in front of Administrative Law Judge Truman J

Sayre Jr Parsons prevailed In a decision issued July 30 2012 ALJ Sayre wrote

The claimant was discharged The claimant was absent beginning May 14 2012 due to her daughters illness The employer and the claimant agreed that the claimant would begin work June 4 2012 subsequent to her maternity leave but the claimant was absent June 4 2012 due to her daughters illness The claimant was then discharged because she failed to report to work as scheduled at 12 noon on June 4 2012 The claimant provided a doctors excuse regarding the June 42012 absence The claimants absence due to her daughters illness would not involve deliberate disregard of the employers interest so the claimants June 4 2012 absence does not constitute misconduct Accordingly it is held the claimant was discharged but not for misconduct The claimant is not disqualified

Appendix 69 ofALlDecision at Appendix 67-69

1

The employer appealed that decision to the Board of Review This hearing was to take no

new testimony or evidence and was held on September 5 2012 The claimant who was pro se

did not appear The Board of Review overturned the ALJs decision and held that Parsons should

be denied unemployment benefits for a different reason than what was given by the ALJ The

Board ruled that Parsons voluntarily quit

When the claimant went on maternity leave she worked Monday through Wednesday At the end of the maternity leave the employer expected her to resume the same schedule The claimant was unable to do so The claimant effectively quit her job when she indicated she could only work Mondays and Fridays The claimant missed work on June 42012 because her daughter was ill This absence would have been excused under normal circumstances Nevertheless the claimant had no plans to work the following days of that week Tuesday and Wednesday Accordingly it is found that the claimant quit her job She has failed to show any fault on part of the employer causing her to quit

Appendix 85 and 86 ofBoard ofReview Decision at Appendix 84-88

The above decision of the Board of Review was appealed to the Kanawha County Circuit

Court On April 24 2013 the Circuit Court ruled

In the present case it is undisputed based on testimony adduced before Administrative Law Judge Sayre that the Petitioner never communicated an intention to resign from her position to her employer Furthermore the employer sent her the letter stating that she was terminated from her position subsequent to her failure to report back to work on Monday June 42012 when she called in to advise that her baby was ill and that she would be unable to work

It was established that under the employee handbook that the Petitioner signed and agreed to three consecutive absences would be treated as voluntarily resigning employment Hearing Transcript p 46-47 The Petitioner was absent one day of work prior to receiving the termination letter from the Respondent Had the Petitioner remained absent for the next two days and had the respondent not sent the letter she may very well be considered as having left her employment without good cause involving fault on the part of the employer However the Petitioner had not yet taken the final action to resign her job when she received the termination letter

Circuit Court Order Appendix 166-167

Following this Order Parsons was awarded partial back pay from WorkForce West

Virginia

2

II Facts of the Case

Parsons a licensed practical nurse worked for WHC a medical clinic part-time before

taking maternity leave on March 26 2012 She was fired over the telephone on June 4 2012

before she could come back to work following the maternity leave See AU Hrg Tr ofJuly 27

2012 at 53 Appendix 35 Parsons had a difficult pregnancy and a sick baby Id at 48-50

Appendix 33-34 At 86 Appendix 43 Prior to her coming back to work Parsons was asked by

her employer to provide days when she would be available to work Id at 35 Appendix 30

Parsons also testified that neither she nor her employer had addressed what her work schedule

would be when she came back from maternity leave See id at 42 Appendix 32 Parsons

testified that she talked to the front office manager Marci Meyers on May 142012 and told her

she would not be able to return to work for another two weeks and that Ms Myers told her that

would not be a problem AU transcript page 27-28 Appendix 28 After May 14 2012 Parsons

did not hear from WHC She received no telephone calls no text messages and no letters AU

transcript page 31 Appendix 29 On May 25 Parsons let WHC know she was coming back to

work Still having no written information about what her work schedule would be Parsons sent a

text message stating she could start back to work on Mondays and Fridays See Employer

Exhibit 6 attached to July 27 2012 transcript Appendix 56 On May 29 2012 Parsons

submitted to her employer a facsimile that stated she would be available to work on Mondays

and Fridays See Employer Exhibit 7 attached to July 27 2012 transcript Appendix 57

Despite Parsons requests to work on Mondays and Fridays those requests were denied That

same date Executive Director of WHC Sharon Lewis sent a letter to Parsons putting in writing

for the first time her schedule The schedule would be Monday (1200 pm to 5 pm) Tuesday

(830 am to 500 pm) and Wednesday (1200 to 500 pm) See Employer Exhibit 8 attached

3

to July 27 2012 transcript Appendix 58 This letter arrived May 30 2012 Parsons was to

report to work five days later and work a schedule she was just now given

The May 292012 letter sent by Ms Lewis further stated to Parsons that [i]fyou fail to

report for work on Monday June 4 2012 your employment will be terminated pursuant to

Policy No 502 set forth in the Womens Health Center Employee Handbook See id Appendix

58 WHCs policy manual states employees who are absent from work for three consecutive

days without giving proper notice to the Center will be considered to have voluntarily

resigned See Employer Exhibit 1 to July 27 2012 hearing Appendix 48 (emphasis added)

Parsons called the Womens Health Center on the morning of June 4 2012 to report that

she could not come to work because her baby was sick See ALJ transcript p 48 Appendix 33

The baby had an allergy and her little body was covered with blisters See ALJ transcript p 49shy

50 Appendix 34 The receptionist Susan Patton took a note dated June 4 2012 and timed at

839 am which stated that Nicole Parsons had called stating I cant come in because I have to

take Carlee to the doctor See Employers Exhibit 9 attached to July 27 2012 transcript

Appendix 59 Parsons spoke with Ms Lewis later that day to make sure Ms Lewis knew she

would not be coming to work See AL J transcript at p 53 Appendix 35 Ms Lewis testified

that she did indeed speak to Parsons and told her that she had sent the May 29 2012 letter and

that because she was not coming to work on June 4 2012 she should refer to that letter which

told her she would be terminated if she failed to report to work See ALJ transcript at 78 and 79

Appendix 41 Ms Lewis testified Well ifthats what the letter stated then thats what it means

ld at 79 Therefore Parsons was effectively terminated from employment on that day June 4

2012

4

Ms Lewis sent a letter dated June 6 2012 stating that Parsons was indeed terminated

See Employers Exhibit 10 attached to the July 27 2012 transcript Appendix 60 The

purpose of this letter is to advise you that your employment with the Womens Health Center of

West Virginia was terminated effective June 5 2012 as a result of your failure to report to

work for your scheduled shift starting at 1200 noon on June 4 2012 ld (emphasis added)

Appendix 60 The letter further states [y]our absences since May 28 2012 have been

unapproved and unexcused As a result your employment has been terminated ld (emphasis

added) Appendix 60 This letter says nothing about Parsons failure to make plans to work

Tuesdays and Wednesdays

SUMMARY OF ARGUMENT

The Circuit Court was correct in its ruling that the Board of Review was clearly wrong

Parsons never communicated an intention to resign from her position In fact she took steps to

keep her employer informed of her babys health and when she could return to work Parsons

had nothing in writing about what her schedule would be upon her return Parsons believed she

was given an extension to her maternity leave when she spoke with her supervisor Marci Meyers

on May 14 2012 WHC sent a letter on May 29 2012 for the first time outlining in writing

what her schedule would be upon Parsons return from maternity leave That schedule would be

June 4 2012 (1200 pm to 500 pm) Tuesday (830 am to 500 pm) and Wednesday (1200

pm to 500 pm) Yet when she called to give notice pursuant to the handbook that she could

not come to work on June 4 2012 she was fired and then told that her absences from May 28

2012 had been unapproved and unexcused Parsons was not scheduled to work the week of May

282012 She was pursuant to Lewis letter told to report to work on June 42012 The Circuit

Court is correct that if Parsons had failed to come to work the next two days without notice she

5

would have voluntarily left her job The way it was handled by WHC Parsons was terminated

and the letter she received on June 6 2012 said exactly that

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Appellee believes that oral argument is necessary and would help the Court understand

the issues

ARGUMENT

Standard of Review

Appeals of decisions of the Workforce West Virginia Board of Review are subject to the

following standard of review

The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong

Syl Pt 3 Adkins v Gatson 192 W Va 561453 SE2d 395 (1994) Further the Court is

guided by the consistent recognition that unemployment compensation statutes should be

liberally construed in favor of the claimant[] Mercer County Board of Education v Gatson

186 W Va 252 412 SE2d 249 (1991)

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination letter

Nicole Parsons wanted to come back to work after giving birth to her baby She had a

difficult pregnancy and a sick baby but she needed to continue working She called her

workplace sent text messages and even sent a facsimile letting WHC know she planned to come

back to work Parsons believed she had been granted a two week extension to her maternity

leave from May 142012 to May 282012 She called on May 252012 to tell WHC that she was

ready to come back to work the following week She did request to work Mondays and Friday

6

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

The employer appealed that decision to the Board of Review This hearing was to take no

new testimony or evidence and was held on September 5 2012 The claimant who was pro se

did not appear The Board of Review overturned the ALJs decision and held that Parsons should

be denied unemployment benefits for a different reason than what was given by the ALJ The

Board ruled that Parsons voluntarily quit

When the claimant went on maternity leave she worked Monday through Wednesday At the end of the maternity leave the employer expected her to resume the same schedule The claimant was unable to do so The claimant effectively quit her job when she indicated she could only work Mondays and Fridays The claimant missed work on June 42012 because her daughter was ill This absence would have been excused under normal circumstances Nevertheless the claimant had no plans to work the following days of that week Tuesday and Wednesday Accordingly it is found that the claimant quit her job She has failed to show any fault on part of the employer causing her to quit

Appendix 85 and 86 ofBoard ofReview Decision at Appendix 84-88

The above decision of the Board of Review was appealed to the Kanawha County Circuit

Court On April 24 2013 the Circuit Court ruled

In the present case it is undisputed based on testimony adduced before Administrative Law Judge Sayre that the Petitioner never communicated an intention to resign from her position to her employer Furthermore the employer sent her the letter stating that she was terminated from her position subsequent to her failure to report back to work on Monday June 42012 when she called in to advise that her baby was ill and that she would be unable to work

It was established that under the employee handbook that the Petitioner signed and agreed to three consecutive absences would be treated as voluntarily resigning employment Hearing Transcript p 46-47 The Petitioner was absent one day of work prior to receiving the termination letter from the Respondent Had the Petitioner remained absent for the next two days and had the respondent not sent the letter she may very well be considered as having left her employment without good cause involving fault on the part of the employer However the Petitioner had not yet taken the final action to resign her job when she received the termination letter

Circuit Court Order Appendix 166-167

Following this Order Parsons was awarded partial back pay from WorkForce West

Virginia

2

II Facts of the Case

Parsons a licensed practical nurse worked for WHC a medical clinic part-time before

taking maternity leave on March 26 2012 She was fired over the telephone on June 4 2012

before she could come back to work following the maternity leave See AU Hrg Tr ofJuly 27

2012 at 53 Appendix 35 Parsons had a difficult pregnancy and a sick baby Id at 48-50

Appendix 33-34 At 86 Appendix 43 Prior to her coming back to work Parsons was asked by

her employer to provide days when she would be available to work Id at 35 Appendix 30

Parsons also testified that neither she nor her employer had addressed what her work schedule

would be when she came back from maternity leave See id at 42 Appendix 32 Parsons

testified that she talked to the front office manager Marci Meyers on May 142012 and told her

she would not be able to return to work for another two weeks and that Ms Myers told her that

would not be a problem AU transcript page 27-28 Appendix 28 After May 14 2012 Parsons

did not hear from WHC She received no telephone calls no text messages and no letters AU

transcript page 31 Appendix 29 On May 25 Parsons let WHC know she was coming back to

work Still having no written information about what her work schedule would be Parsons sent a

text message stating she could start back to work on Mondays and Fridays See Employer

Exhibit 6 attached to July 27 2012 transcript Appendix 56 On May 29 2012 Parsons

submitted to her employer a facsimile that stated she would be available to work on Mondays

and Fridays See Employer Exhibit 7 attached to July 27 2012 transcript Appendix 57

Despite Parsons requests to work on Mondays and Fridays those requests were denied That

same date Executive Director of WHC Sharon Lewis sent a letter to Parsons putting in writing

for the first time her schedule The schedule would be Monday (1200 pm to 5 pm) Tuesday

(830 am to 500 pm) and Wednesday (1200 to 500 pm) See Employer Exhibit 8 attached

3

to July 27 2012 transcript Appendix 58 This letter arrived May 30 2012 Parsons was to

report to work five days later and work a schedule she was just now given

The May 292012 letter sent by Ms Lewis further stated to Parsons that [i]fyou fail to

report for work on Monday June 4 2012 your employment will be terminated pursuant to

Policy No 502 set forth in the Womens Health Center Employee Handbook See id Appendix

58 WHCs policy manual states employees who are absent from work for three consecutive

days without giving proper notice to the Center will be considered to have voluntarily

resigned See Employer Exhibit 1 to July 27 2012 hearing Appendix 48 (emphasis added)

Parsons called the Womens Health Center on the morning of June 4 2012 to report that

she could not come to work because her baby was sick See ALJ transcript p 48 Appendix 33

The baby had an allergy and her little body was covered with blisters See ALJ transcript p 49shy

50 Appendix 34 The receptionist Susan Patton took a note dated June 4 2012 and timed at

839 am which stated that Nicole Parsons had called stating I cant come in because I have to

take Carlee to the doctor See Employers Exhibit 9 attached to July 27 2012 transcript

Appendix 59 Parsons spoke with Ms Lewis later that day to make sure Ms Lewis knew she

would not be coming to work See AL J transcript at p 53 Appendix 35 Ms Lewis testified

that she did indeed speak to Parsons and told her that she had sent the May 29 2012 letter and

that because she was not coming to work on June 4 2012 she should refer to that letter which

told her she would be terminated if she failed to report to work See ALJ transcript at 78 and 79

Appendix 41 Ms Lewis testified Well ifthats what the letter stated then thats what it means

ld at 79 Therefore Parsons was effectively terminated from employment on that day June 4

2012

4

Ms Lewis sent a letter dated June 6 2012 stating that Parsons was indeed terminated

See Employers Exhibit 10 attached to the July 27 2012 transcript Appendix 60 The

purpose of this letter is to advise you that your employment with the Womens Health Center of

West Virginia was terminated effective June 5 2012 as a result of your failure to report to

work for your scheduled shift starting at 1200 noon on June 4 2012 ld (emphasis added)

Appendix 60 The letter further states [y]our absences since May 28 2012 have been

unapproved and unexcused As a result your employment has been terminated ld (emphasis

added) Appendix 60 This letter says nothing about Parsons failure to make plans to work

Tuesdays and Wednesdays

SUMMARY OF ARGUMENT

The Circuit Court was correct in its ruling that the Board of Review was clearly wrong

Parsons never communicated an intention to resign from her position In fact she took steps to

keep her employer informed of her babys health and when she could return to work Parsons

had nothing in writing about what her schedule would be upon her return Parsons believed she

was given an extension to her maternity leave when she spoke with her supervisor Marci Meyers

on May 14 2012 WHC sent a letter on May 29 2012 for the first time outlining in writing

what her schedule would be upon Parsons return from maternity leave That schedule would be

June 4 2012 (1200 pm to 500 pm) Tuesday (830 am to 500 pm) and Wednesday (1200

pm to 500 pm) Yet when she called to give notice pursuant to the handbook that she could

not come to work on June 4 2012 she was fired and then told that her absences from May 28

2012 had been unapproved and unexcused Parsons was not scheduled to work the week of May

282012 She was pursuant to Lewis letter told to report to work on June 42012 The Circuit

Court is correct that if Parsons had failed to come to work the next two days without notice she

5

would have voluntarily left her job The way it was handled by WHC Parsons was terminated

and the letter she received on June 6 2012 said exactly that

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Appellee believes that oral argument is necessary and would help the Court understand

the issues

ARGUMENT

Standard of Review

Appeals of decisions of the Workforce West Virginia Board of Review are subject to the

following standard of review

The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong

Syl Pt 3 Adkins v Gatson 192 W Va 561453 SE2d 395 (1994) Further the Court is

guided by the consistent recognition that unemployment compensation statutes should be

liberally construed in favor of the claimant[] Mercer County Board of Education v Gatson

186 W Va 252 412 SE2d 249 (1991)

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination letter

Nicole Parsons wanted to come back to work after giving birth to her baby She had a

difficult pregnancy and a sick baby but she needed to continue working She called her

workplace sent text messages and even sent a facsimile letting WHC know she planned to come

back to work Parsons believed she had been granted a two week extension to her maternity

leave from May 142012 to May 282012 She called on May 252012 to tell WHC that she was

ready to come back to work the following week She did request to work Mondays and Friday

6

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

II Facts of the Case

Parsons a licensed practical nurse worked for WHC a medical clinic part-time before

taking maternity leave on March 26 2012 She was fired over the telephone on June 4 2012

before she could come back to work following the maternity leave See AU Hrg Tr ofJuly 27

2012 at 53 Appendix 35 Parsons had a difficult pregnancy and a sick baby Id at 48-50

Appendix 33-34 At 86 Appendix 43 Prior to her coming back to work Parsons was asked by

her employer to provide days when she would be available to work Id at 35 Appendix 30

Parsons also testified that neither she nor her employer had addressed what her work schedule

would be when she came back from maternity leave See id at 42 Appendix 32 Parsons

testified that she talked to the front office manager Marci Meyers on May 142012 and told her

she would not be able to return to work for another two weeks and that Ms Myers told her that

would not be a problem AU transcript page 27-28 Appendix 28 After May 14 2012 Parsons

did not hear from WHC She received no telephone calls no text messages and no letters AU

transcript page 31 Appendix 29 On May 25 Parsons let WHC know she was coming back to

work Still having no written information about what her work schedule would be Parsons sent a

text message stating she could start back to work on Mondays and Fridays See Employer

Exhibit 6 attached to July 27 2012 transcript Appendix 56 On May 29 2012 Parsons

submitted to her employer a facsimile that stated she would be available to work on Mondays

and Fridays See Employer Exhibit 7 attached to July 27 2012 transcript Appendix 57

Despite Parsons requests to work on Mondays and Fridays those requests were denied That

same date Executive Director of WHC Sharon Lewis sent a letter to Parsons putting in writing

for the first time her schedule The schedule would be Monday (1200 pm to 5 pm) Tuesday

(830 am to 500 pm) and Wednesday (1200 to 500 pm) See Employer Exhibit 8 attached

3

to July 27 2012 transcript Appendix 58 This letter arrived May 30 2012 Parsons was to

report to work five days later and work a schedule she was just now given

The May 292012 letter sent by Ms Lewis further stated to Parsons that [i]fyou fail to

report for work on Monday June 4 2012 your employment will be terminated pursuant to

Policy No 502 set forth in the Womens Health Center Employee Handbook See id Appendix

58 WHCs policy manual states employees who are absent from work for three consecutive

days without giving proper notice to the Center will be considered to have voluntarily

resigned See Employer Exhibit 1 to July 27 2012 hearing Appendix 48 (emphasis added)

Parsons called the Womens Health Center on the morning of June 4 2012 to report that

she could not come to work because her baby was sick See ALJ transcript p 48 Appendix 33

The baby had an allergy and her little body was covered with blisters See ALJ transcript p 49shy

50 Appendix 34 The receptionist Susan Patton took a note dated June 4 2012 and timed at

839 am which stated that Nicole Parsons had called stating I cant come in because I have to

take Carlee to the doctor See Employers Exhibit 9 attached to July 27 2012 transcript

Appendix 59 Parsons spoke with Ms Lewis later that day to make sure Ms Lewis knew she

would not be coming to work See AL J transcript at p 53 Appendix 35 Ms Lewis testified

that she did indeed speak to Parsons and told her that she had sent the May 29 2012 letter and

that because she was not coming to work on June 4 2012 she should refer to that letter which

told her she would be terminated if she failed to report to work See ALJ transcript at 78 and 79

Appendix 41 Ms Lewis testified Well ifthats what the letter stated then thats what it means

ld at 79 Therefore Parsons was effectively terminated from employment on that day June 4

2012

4

Ms Lewis sent a letter dated June 6 2012 stating that Parsons was indeed terminated

See Employers Exhibit 10 attached to the July 27 2012 transcript Appendix 60 The

purpose of this letter is to advise you that your employment with the Womens Health Center of

West Virginia was terminated effective June 5 2012 as a result of your failure to report to

work for your scheduled shift starting at 1200 noon on June 4 2012 ld (emphasis added)

Appendix 60 The letter further states [y]our absences since May 28 2012 have been

unapproved and unexcused As a result your employment has been terminated ld (emphasis

added) Appendix 60 This letter says nothing about Parsons failure to make plans to work

Tuesdays and Wednesdays

SUMMARY OF ARGUMENT

The Circuit Court was correct in its ruling that the Board of Review was clearly wrong

Parsons never communicated an intention to resign from her position In fact she took steps to

keep her employer informed of her babys health and when she could return to work Parsons

had nothing in writing about what her schedule would be upon her return Parsons believed she

was given an extension to her maternity leave when she spoke with her supervisor Marci Meyers

on May 14 2012 WHC sent a letter on May 29 2012 for the first time outlining in writing

what her schedule would be upon Parsons return from maternity leave That schedule would be

June 4 2012 (1200 pm to 500 pm) Tuesday (830 am to 500 pm) and Wednesday (1200

pm to 500 pm) Yet when she called to give notice pursuant to the handbook that she could

not come to work on June 4 2012 she was fired and then told that her absences from May 28

2012 had been unapproved and unexcused Parsons was not scheduled to work the week of May

282012 She was pursuant to Lewis letter told to report to work on June 42012 The Circuit

Court is correct that if Parsons had failed to come to work the next two days without notice she

5

would have voluntarily left her job The way it was handled by WHC Parsons was terminated

and the letter she received on June 6 2012 said exactly that

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Appellee believes that oral argument is necessary and would help the Court understand

the issues

ARGUMENT

Standard of Review

Appeals of decisions of the Workforce West Virginia Board of Review are subject to the

following standard of review

The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong

Syl Pt 3 Adkins v Gatson 192 W Va 561453 SE2d 395 (1994) Further the Court is

guided by the consistent recognition that unemployment compensation statutes should be

liberally construed in favor of the claimant[] Mercer County Board of Education v Gatson

186 W Va 252 412 SE2d 249 (1991)

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination letter

Nicole Parsons wanted to come back to work after giving birth to her baby She had a

difficult pregnancy and a sick baby but she needed to continue working She called her

workplace sent text messages and even sent a facsimile letting WHC know she planned to come

back to work Parsons believed she had been granted a two week extension to her maternity

leave from May 142012 to May 282012 She called on May 252012 to tell WHC that she was

ready to come back to work the following week She did request to work Mondays and Friday

6

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

to July 27 2012 transcript Appendix 58 This letter arrived May 30 2012 Parsons was to

report to work five days later and work a schedule she was just now given

The May 292012 letter sent by Ms Lewis further stated to Parsons that [i]fyou fail to

report for work on Monday June 4 2012 your employment will be terminated pursuant to

Policy No 502 set forth in the Womens Health Center Employee Handbook See id Appendix

58 WHCs policy manual states employees who are absent from work for three consecutive

days without giving proper notice to the Center will be considered to have voluntarily

resigned See Employer Exhibit 1 to July 27 2012 hearing Appendix 48 (emphasis added)

Parsons called the Womens Health Center on the morning of June 4 2012 to report that

she could not come to work because her baby was sick See ALJ transcript p 48 Appendix 33

The baby had an allergy and her little body was covered with blisters See ALJ transcript p 49shy

50 Appendix 34 The receptionist Susan Patton took a note dated June 4 2012 and timed at

839 am which stated that Nicole Parsons had called stating I cant come in because I have to

take Carlee to the doctor See Employers Exhibit 9 attached to July 27 2012 transcript

Appendix 59 Parsons spoke with Ms Lewis later that day to make sure Ms Lewis knew she

would not be coming to work See AL J transcript at p 53 Appendix 35 Ms Lewis testified

that she did indeed speak to Parsons and told her that she had sent the May 29 2012 letter and

that because she was not coming to work on June 4 2012 she should refer to that letter which

told her she would be terminated if she failed to report to work See ALJ transcript at 78 and 79

Appendix 41 Ms Lewis testified Well ifthats what the letter stated then thats what it means

ld at 79 Therefore Parsons was effectively terminated from employment on that day June 4

2012

4

Ms Lewis sent a letter dated June 6 2012 stating that Parsons was indeed terminated

See Employers Exhibit 10 attached to the July 27 2012 transcript Appendix 60 The

purpose of this letter is to advise you that your employment with the Womens Health Center of

West Virginia was terminated effective June 5 2012 as a result of your failure to report to

work for your scheduled shift starting at 1200 noon on June 4 2012 ld (emphasis added)

Appendix 60 The letter further states [y]our absences since May 28 2012 have been

unapproved and unexcused As a result your employment has been terminated ld (emphasis

added) Appendix 60 This letter says nothing about Parsons failure to make plans to work

Tuesdays and Wednesdays

SUMMARY OF ARGUMENT

The Circuit Court was correct in its ruling that the Board of Review was clearly wrong

Parsons never communicated an intention to resign from her position In fact she took steps to

keep her employer informed of her babys health and when she could return to work Parsons

had nothing in writing about what her schedule would be upon her return Parsons believed she

was given an extension to her maternity leave when she spoke with her supervisor Marci Meyers

on May 14 2012 WHC sent a letter on May 29 2012 for the first time outlining in writing

what her schedule would be upon Parsons return from maternity leave That schedule would be

June 4 2012 (1200 pm to 500 pm) Tuesday (830 am to 500 pm) and Wednesday (1200

pm to 500 pm) Yet when she called to give notice pursuant to the handbook that she could

not come to work on June 4 2012 she was fired and then told that her absences from May 28

2012 had been unapproved and unexcused Parsons was not scheduled to work the week of May

282012 She was pursuant to Lewis letter told to report to work on June 42012 The Circuit

Court is correct that if Parsons had failed to come to work the next two days without notice she

5

would have voluntarily left her job The way it was handled by WHC Parsons was terminated

and the letter she received on June 6 2012 said exactly that

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Appellee believes that oral argument is necessary and would help the Court understand

the issues

ARGUMENT

Standard of Review

Appeals of decisions of the Workforce West Virginia Board of Review are subject to the

following standard of review

The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong

Syl Pt 3 Adkins v Gatson 192 W Va 561453 SE2d 395 (1994) Further the Court is

guided by the consistent recognition that unemployment compensation statutes should be

liberally construed in favor of the claimant[] Mercer County Board of Education v Gatson

186 W Va 252 412 SE2d 249 (1991)

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination letter

Nicole Parsons wanted to come back to work after giving birth to her baby She had a

difficult pregnancy and a sick baby but she needed to continue working She called her

workplace sent text messages and even sent a facsimile letting WHC know she planned to come

back to work Parsons believed she had been granted a two week extension to her maternity

leave from May 142012 to May 282012 She called on May 252012 to tell WHC that she was

ready to come back to work the following week She did request to work Mondays and Friday

6

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

Ms Lewis sent a letter dated June 6 2012 stating that Parsons was indeed terminated

See Employers Exhibit 10 attached to the July 27 2012 transcript Appendix 60 The

purpose of this letter is to advise you that your employment with the Womens Health Center of

West Virginia was terminated effective June 5 2012 as a result of your failure to report to

work for your scheduled shift starting at 1200 noon on June 4 2012 ld (emphasis added)

Appendix 60 The letter further states [y]our absences since May 28 2012 have been

unapproved and unexcused As a result your employment has been terminated ld (emphasis

added) Appendix 60 This letter says nothing about Parsons failure to make plans to work

Tuesdays and Wednesdays

SUMMARY OF ARGUMENT

The Circuit Court was correct in its ruling that the Board of Review was clearly wrong

Parsons never communicated an intention to resign from her position In fact she took steps to

keep her employer informed of her babys health and when she could return to work Parsons

had nothing in writing about what her schedule would be upon her return Parsons believed she

was given an extension to her maternity leave when she spoke with her supervisor Marci Meyers

on May 14 2012 WHC sent a letter on May 29 2012 for the first time outlining in writing

what her schedule would be upon Parsons return from maternity leave That schedule would be

June 4 2012 (1200 pm to 500 pm) Tuesday (830 am to 500 pm) and Wednesday (1200

pm to 500 pm) Yet when she called to give notice pursuant to the handbook that she could

not come to work on June 4 2012 she was fired and then told that her absences from May 28

2012 had been unapproved and unexcused Parsons was not scheduled to work the week of May

282012 She was pursuant to Lewis letter told to report to work on June 42012 The Circuit

Court is correct that if Parsons had failed to come to work the next two days without notice she

5

would have voluntarily left her job The way it was handled by WHC Parsons was terminated

and the letter she received on June 6 2012 said exactly that

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Appellee believes that oral argument is necessary and would help the Court understand

the issues

ARGUMENT

Standard of Review

Appeals of decisions of the Workforce West Virginia Board of Review are subject to the

following standard of review

The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong

Syl Pt 3 Adkins v Gatson 192 W Va 561453 SE2d 395 (1994) Further the Court is

guided by the consistent recognition that unemployment compensation statutes should be

liberally construed in favor of the claimant[] Mercer County Board of Education v Gatson

186 W Va 252 412 SE2d 249 (1991)

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination letter

Nicole Parsons wanted to come back to work after giving birth to her baby She had a

difficult pregnancy and a sick baby but she needed to continue working She called her

workplace sent text messages and even sent a facsimile letting WHC know she planned to come

back to work Parsons believed she had been granted a two week extension to her maternity

leave from May 142012 to May 282012 She called on May 252012 to tell WHC that she was

ready to come back to work the following week She did request to work Mondays and Friday

6

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

would have voluntarily left her job The way it was handled by WHC Parsons was terminated

and the letter she received on June 6 2012 said exactly that

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Appellee believes that oral argument is necessary and would help the Court understand

the issues

ARGUMENT

Standard of Review

Appeals of decisions of the Workforce West Virginia Board of Review are subject to the

following standard of review

The findings of fact of the Board of Review of the [West Virginia Bureau of Employment Programs] are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong

Syl Pt 3 Adkins v Gatson 192 W Va 561453 SE2d 395 (1994) Further the Court is

guided by the consistent recognition that unemployment compensation statutes should be

liberally construed in favor of the claimant[] Mercer County Board of Education v Gatson

186 W Va 252 412 SE2d 249 (1991)

I The Circuit Court was correct when it found Appellee never communicated an intention to resign and she was sent a termination letter

Nicole Parsons wanted to come back to work after giving birth to her baby She had a

difficult pregnancy and a sick baby but she needed to continue working She called her

workplace sent text messages and even sent a facsimile letting WHC know she planned to come

back to work Parsons believed she had been granted a two week extension to her maternity

leave from May 142012 to May 282012 She called on May 252012 to tell WHC that she was

ready to come back to work the following week She did request to work Mondays and Friday

6

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

However after she requested work days of Monday and Friday those dates were denied She was

told in the letter dated May 29 2012 that she would work Monday Tuesday and Wednesday

beginning on June 4 2012 She was not told to come to work the week of May 28 2012 On

June 4 2012 when her baby was covered with blisters she called to say she could not come to

work that day That is when she was fired

Unemployment compensation statues are to be liberally construed in favor of the

claimant Mercer County Board ofEducation v Gatson In Mercer County Board ofEducation

two professors were terminated from their positions with the Board They were mental health

professionals and the work in Mercer County was limited for them The Board of Review denied

unemployment benefits based on the fact that they did not take work offered to them when in

fact the work offered to them was less hours with no benefitsld 186 W Va at 253 The Circuit

Court reversed the Board of Review and the Supreme Court upheld the Circuit Court decision

The case at bar is similar in that the Circuit Court interpreted the facts differently from the Board

of Review to in fact favor the claimant pursuant to case law The two professors were offered

work however the work was not the same as the job they had before In the case at bar Parsons

believed she was on her extended maternity leave did not miss three days in a row and yet was

terminated WHC believed from the termination letter sent on June 6th 2012 that Parsons had

missed work without notice and used that reasoning to fire her

Parsons believed she had been given an extended maternity leave until May 28 2012

She called on May 252012 to let WHC know she would be able to report to work the following

Monday She was told that was a holiday and then in written communication was told to report to

work June 4 2012 or else The letter stated she would be fired pursuant to the WHC handbook

that pointed out three consecutive absences without reporting to your employer that you would

7

not be at work would mean you voluntarily resign So on June 4 2012 when Parsons baby was

sick she called to report she would not be able to come to work Parsons did what she was

supposed to do In her mind this would be her first missed day of work and she did report in

Parsons wanted to come back to work she had no intention to resign Therefore the law

should work in her favor and provide her with unemployment compensation The Circuit Court

was correct in its ruling and must be upheld

Further Parsons did receive a termination letter from WHC Following the over- theshy

phone firing on June 4 2012 Sharon Lewis sent a letter to outline what had happened The

purpose of this letter is to advise you that your employment with the Womens Health Center of

West Virginia was terminated effective June 5 2012 as a result of your failure to report to

work for your scheduled shift starting at 1200 noon on June 4 2012 The letter did not say

you are voluntarily quitting because you do not plan to show up on Tuesdays and Wednesdays

In fact the letter said [y]our absences since May 28 2012 have been unapproved and

unexcused As a result your employment has been terminated Parsons was not scheduled to

work the week of May 282012 She had been told in writing to report June 4 2012

When it is clear that the factual findings of the Board of Review are not supported by the

evidence Circuit Courts are instructed to reverse the decision of the Board of Review See May

v Chair and Members Board ofReview 222 W Va 373 664 SE2d 714 (2008)

Parsons received a termination letter The letter did not say she was fired because she

could not work on Tuesdays and Wednesdays The letter did not say she voluntarily resigned for

missing more than three days without giving notice to WHC The letter said you are terminated

for not working a week when you were not scheduled to work

8

The Board of Reviews decision was not supported by the evidence The Circuit Court

correctly ruled that the letter meant what it said Parsons was terminated The Circuit Court

ruling must stand

II Nicole Parsons was terminated from her position for failing to report to one day of work when her employee handbook stated three consecutive absences would be treated as voluntarily resigning employment

The WHC employee handbook outlined that the only way that firing would tum into

voluntary resignation was if an employee missed work for three consecutive days without giving

proper notice Parsons had not been absent for three consecutive days without giving notice In

fact she was diligent about communicating with WHC Parsons tried to get clarification from

Sharon Lewis but was only told that the letter sent on May 292012 advising that she would be

fired if she didnt come to work on June 4 2012 said what she meant - if Parsons did not show

up on June 4 2012 she would be terminated And thats what happened Parsons was terminated

over the telephone on June 42012

The follow-up letter then made it clear that she was terminated It did not say you have

failed to show up three days in a row without giving us notice The letter said [y]our absences

since May 28 2012 have been unapproved and unexcused As a result your employment has

been terminated Parsons was not scheduled to work the week of May 282012 pursuant to the

letter she received on May 292012 directing her to come back to work on June 42012

Once again the Board of Reviews decision must be overturned if not supported by the

evidence See May v Chair and Chambers

The Circuit Court was correct in finding that Parsons was absent on one day of work

prior to receiving the termination letter Had Parsons remained absent for the next two days she

may very well be considered to have left her employment Circuit Court Order Appendix 167

9

Once again the Board of Review was clearly wrong in calculating that Parsons voluntarily quit

Therefore the Circuit Court ruling must stand

The Board Had No Evidence of Whether Parsons Would Work Tuesday and Wednesday

No evidence is in the record to indicate that Parsons would not come to work on June 5th

or June 6th or any of the following Tuesdays or Wednesdays Appellant claims that because

Parsons told WHC workers and Ms Lewis that she was available on Mondays and Fridays prior

to her having written confirmation of her schedule means she would not come to work on

Tuesdays and Wednesday However at the ALJ hearing no one even asked her that question

Parsons was never asked by anyone if she planned to not show up on Tuesdays and Wednesdays

The Board states the fact remains that the claimant had no intention to return to work her

pre-leave schedule of Monday through Wednesday There is absolutely no evidence of this

intention Parsons stated her preferences as to what days she would like to work but was fired

before she was able to resume a schedule

Further what Parsons did after she was terminated is not relevant to her intentions prior

to her termination Parsons did state in another unemployment hearing that she was available for

work on Friday Saturday Sunday and Monday) This has nothing to do with whether she was

planning to work on Tuesdays and Wednesdays for WHC That information should not be

used against her as it would go against the liberal construction of the unemployment

compensation statutes

1 The Board of Review ruled that she was available for work and therefore qualified to receive benefits on that issue See Appendix 79-83

10

7 =

CONCLUSION

Therefore Appellee Nicole Parsons respectfully requests that the Court DENY

Appellants appeal and UPHOLD the decision of the Circuit Court in this matter that allows her

to be granted benefits from June 5 2012 to her date ofre-employment on February 122013

NICOLE PARSONS

By Counsel

I Kathy N Brown Esquire (WV BafID No 8878) KATHY BROWN LA W PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

11

CERTIFICATE OF SERVICE il

I Kathy A Brown hereby certify this g=- day of October 2013 that true and accurate

copies of the foregoing Response BriefofAppellee Nicole Parsons was served on the following

by placing a true and exact copy thereof in the United States Mail postage prepaid

Board of Review Workforce West Virginia 112 California Avenue Charleston WV 25305

Appellant

Russell D Jessee Esquire Daniel D Fassio Esquire STEPTOE amp JOHNSON PLLC P O Box 1588 Charleston WV 25326-1588

Counsel for AppeliantIRespondent Central West Virginia Aging Services Inc

Russell Frye Acting Director Capitol Complex Bldg 4 Room 609 112 California Avenue Charleston WV 25305

Y A B own Esquire (WV Bar ID o 8878) KATHY BROWN LAW PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

12

The Board of Reviews decision was not supported by the evidence The Circuit Court

correctly ruled that the letter meant what it said Parsons was terminated The Circuit Court

ruling must stand

II Nicole Parsons was terminated from her position for failing to report to one day of work when her employee handbook stated three consecutive absences would be treated as voluntarily resigning employment

The WHC employee handbook outlined that the only way that firing would tum into

voluntary resignation was if an employee missed work for three consecutive days without giving

proper notice Parsons had not been absent for three consecutive days without giving notice In

fact she was diligent about communicating with WHC Parsons tried to get clarification from

Sharon Lewis but was only told that the letter sent on May 292012 advising that she would be

fired if she didnt come to work on June 4 2012 said what she meant - if Parsons did not show

up on June 4 2012 she would be terminated And thats what happened Parsons was terminated

over the telephone on June 42012

The follow-up letter then made it clear that she was terminated It did not say you have

failed to show up three days in a row without giving us notice The letter said [y]our absences

since May 28 2012 have been unapproved and unexcused As a result your employment has

been terminated Parsons was not scheduled to work the week of May 282012 pursuant to the

letter she received on May 292012 directing her to come back to work on June 42012

Once again the Board of Reviews decision must be overturned if not supported by the

evidence See May v Chair and Chambers

The Circuit Court was correct in finding that Parsons was absent on one day of work

prior to receiving the termination letter Had Parsons remained absent for the next two days she

may very well be considered to have left her employment Circuit Court Order Appendix 167

9

Once again the Board of Review was clearly wrong in calculating that Parsons voluntarily quit

Therefore the Circuit Court ruling must stand

The Board Had No Evidence of Whether Parsons Would Work Tuesday and Wednesday

No evidence is in the record to indicate that Parsons would not come to work on June 5th

or June 6th or any of the following Tuesdays or Wednesdays Appellant claims that because

Parsons told WHC workers and Ms Lewis that she was available on Mondays and Fridays prior

to her having written confirmation of her schedule means she would not come to work on

Tuesdays and Wednesday However at the ALJ hearing no one even asked her that question

Parsons was never asked by anyone if she planned to not show up on Tuesdays and Wednesdays

The Board states the fact remains that the claimant had no intention to return to work her

pre-leave schedule of Monday through Wednesday There is absolutely no evidence of this

intention Parsons stated her preferences as to what days she would like to work but was fired

before she was able to resume a schedule

Further what Parsons did after she was terminated is not relevant to her intentions prior

to her termination Parsons did state in another unemployment hearing that she was available for

work on Friday Saturday Sunday and Monday) This has nothing to do with whether she was

planning to work on Tuesdays and Wednesdays for WHC That information should not be

used against her as it would go against the liberal construction of the unemployment

compensation statutes

1 The Board of Review ruled that she was available for work and therefore qualified to receive benefits on that issue See Appendix 79-83

10

7 =

CONCLUSION

Therefore Appellee Nicole Parsons respectfully requests that the Court DENY

Appellants appeal and UPHOLD the decision of the Circuit Court in this matter that allows her

to be granted benefits from June 5 2012 to her date ofre-employment on February 122013

NICOLE PARSONS

By Counsel

I Kathy N Brown Esquire (WV BafID No 8878) KATHY BROWN LA W PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

11

CERTIFICATE OF SERVICE il

I Kathy A Brown hereby certify this g=- day of October 2013 that true and accurate

copies of the foregoing Response BriefofAppellee Nicole Parsons was served on the following

by placing a true and exact copy thereof in the United States Mail postage prepaid

Board of Review Workforce West Virginia 112 California Avenue Charleston WV 25305

Appellant

Russell D Jessee Esquire Daniel D Fassio Esquire STEPTOE amp JOHNSON PLLC P O Box 1588 Charleston WV 25326-1588

Counsel for AppeliantIRespondent Central West Virginia Aging Services Inc

Russell Frye Acting Director Capitol Complex Bldg 4 Room 609 112 California Avenue Charleston WV 25305

Y A B own Esquire (WV Bar ID o 8878) KATHY BROWN LAW PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

12

Once again the Board of Review was clearly wrong in calculating that Parsons voluntarily quit

Therefore the Circuit Court ruling must stand

The Board Had No Evidence of Whether Parsons Would Work Tuesday and Wednesday

No evidence is in the record to indicate that Parsons would not come to work on June 5th

or June 6th or any of the following Tuesdays or Wednesdays Appellant claims that because

Parsons told WHC workers and Ms Lewis that she was available on Mondays and Fridays prior

to her having written confirmation of her schedule means she would not come to work on

Tuesdays and Wednesday However at the ALJ hearing no one even asked her that question

Parsons was never asked by anyone if she planned to not show up on Tuesdays and Wednesdays

The Board states the fact remains that the claimant had no intention to return to work her

pre-leave schedule of Monday through Wednesday There is absolutely no evidence of this

intention Parsons stated her preferences as to what days she would like to work but was fired

before she was able to resume a schedule

Further what Parsons did after she was terminated is not relevant to her intentions prior

to her termination Parsons did state in another unemployment hearing that she was available for

work on Friday Saturday Sunday and Monday) This has nothing to do with whether she was

planning to work on Tuesdays and Wednesdays for WHC That information should not be

used against her as it would go against the liberal construction of the unemployment

compensation statutes

1 The Board of Review ruled that she was available for work and therefore qualified to receive benefits on that issue See Appendix 79-83

10

7 =

CONCLUSION

Therefore Appellee Nicole Parsons respectfully requests that the Court DENY

Appellants appeal and UPHOLD the decision of the Circuit Court in this matter that allows her

to be granted benefits from June 5 2012 to her date ofre-employment on February 122013

NICOLE PARSONS

By Counsel

I Kathy N Brown Esquire (WV BafID No 8878) KATHY BROWN LA W PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

11

CERTIFICATE OF SERVICE il

I Kathy A Brown hereby certify this g=- day of October 2013 that true and accurate

copies of the foregoing Response BriefofAppellee Nicole Parsons was served on the following

by placing a true and exact copy thereof in the United States Mail postage prepaid

Board of Review Workforce West Virginia 112 California Avenue Charleston WV 25305

Appellant

Russell D Jessee Esquire Daniel D Fassio Esquire STEPTOE amp JOHNSON PLLC P O Box 1588 Charleston WV 25326-1588

Counsel for AppeliantIRespondent Central West Virginia Aging Services Inc

Russell Frye Acting Director Capitol Complex Bldg 4 Room 609 112 California Avenue Charleston WV 25305

Y A B own Esquire (WV Bar ID o 8878) KATHY BROWN LAW PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

12

7 =

CONCLUSION

Therefore Appellee Nicole Parsons respectfully requests that the Court DENY

Appellants appeal and UPHOLD the decision of the Circuit Court in this matter that allows her

to be granted benefits from June 5 2012 to her date ofre-employment on February 122013

NICOLE PARSONS

By Counsel

I Kathy N Brown Esquire (WV BafID No 8878) KATHY BROWN LA W PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

11

CERTIFICATE OF SERVICE il

I Kathy A Brown hereby certify this g=- day of October 2013 that true and accurate

copies of the foregoing Response BriefofAppellee Nicole Parsons was served on the following

by placing a true and exact copy thereof in the United States Mail postage prepaid

Board of Review Workforce West Virginia 112 California Avenue Charleston WV 25305

Appellant

Russell D Jessee Esquire Daniel D Fassio Esquire STEPTOE amp JOHNSON PLLC P O Box 1588 Charleston WV 25326-1588

Counsel for AppeliantIRespondent Central West Virginia Aging Services Inc

Russell Frye Acting Director Capitol Complex Bldg 4 Room 609 112 California Avenue Charleston WV 25305

Y A B own Esquire (WV Bar ID o 8878) KATHY BROWN LAW PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

12

CERTIFICATE OF SERVICE il

I Kathy A Brown hereby certify this g=- day of October 2013 that true and accurate

copies of the foregoing Response BriefofAppellee Nicole Parsons was served on the following

by placing a true and exact copy thereof in the United States Mail postage prepaid

Board of Review Workforce West Virginia 112 California Avenue Charleston WV 25305

Appellant

Russell D Jessee Esquire Daniel D Fassio Esquire STEPTOE amp JOHNSON PLLC P O Box 1588 Charleston WV 25326-1588

Counsel for AppeliantIRespondent Central West Virginia Aging Services Inc

Russell Frye Acting Director Capitol Complex Bldg 4 Room 609 112 California Avenue Charleston WV 25305

Y A B own Esquire (WV Bar ID o 8878) KATHY BROWN LAW PLLC PO Box 631 Charleston WV 25322 (304) 720-2351

12